Tom Cotton, a Second Amendment Champion, Proposes a 5-Year Mandatory Minimum for Violating Arbitrary Gun Bans

Although the Arkansas senator claims to be targeting "violent felons," his draconian bill would affect many people who pose no threat.

Sen. Tom Cotton (R–Ark.), who apparently has never encountered a criminal penalty he thought was too severe, wants to create a five-year mandatory minimum sentence for illegal gun possession. Cotton and the eight Republican senators who are cosponsoring his bill present it as an effective way to reduce violent crime, in contrast with the harebrained gun control schemes favored by Democrats. But the so-called Stop Gun Criminals Act doubles down on longstanding firearm restrictions that were never just or sensible.

"Violent felons commit the vast majority of gun crimes and should be held accountable for their actions," Cotton says. "Instead of releasing criminals onto the streets to commit more crime, our bill will establish mandatory minimum sentences for repeat offenders." That gloss is more than a little misleading, since the five-year mandatory minimum would apply to millions of Americans who are not "violent felons," many of whom have done nothing to suggest they would pose a danger to public safety if they were allowed to own guns.

Federal law prohibits gun possession by several broad categories of people, including anyone with a felony record, whether or not the offense involved violence and regardless of how long ago it was committed; anyone who has ever been subjected to involuntary psychiatric treatment, whether or not he was deemed a threat to others and no matter how many years have elapsed since then; and "unlawful user[s]" of "controlled substances." That last category includes cannabis consumers, even if they live in states that have legalized marijuana, and anyone who takes pills prescribed for someone else or uses a medication contrary to a doctor's instructions.

Under current law, the maximum penalty for violating these bans is 10 years in prison, and there is no mandatory minimum. Cotton's bill would keep the same maximum while requiring that any disqualified person caught with a gun be "imprisoned not less than 5 years." That person could be someone who got into a bar fight, committed tax fraud, or sold drugs 20 years ago; someone who underwent court-ordered psychiatric treatment three decades ago because he was depressed and possibly suicidal; someone who smokes marijuana for medical or recreational purposes; or even someone who takes a relative's unused hydrocodone to relieve pain caused by a back injury.

Cotton not only thinks all those people deserve to lose their Second Amendment rights. He thinks they all deserve to spend five years in prison if they dare to defy that decree by keeping a gun for self-defense.

On this issue, Cotton is even more hostile to gun rights than the American Civil Liberties Union (ACLU), which maintains that the Second Amendment does not protect an individual's right to arms. The ACLU nevertheless recognizes that "the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state's interest in public safety, and raise significant equal protection and due process concerns."

Supreme Court Justice Amy Coney Barrett has expressed similar concerns. In a 2019 dissent as a judge on the U.S. Court of Appeals for the 7th Circuit, Barrett concluded that the "wildly overinclusive" ban on gun possession by people with felony records violates the Second Amendment.

That case involved a Wisconsin businessman, Rickey Kanter, who had pleaded guilty to mail fraud after he was accused of shipping shoe inserts he falsely claimed were approved by Medicare to a podiatrist in Florida. Barrett noted that people can permanently lose their Second Amendment rights based on a wide variety of criminal convictions, including "everything from Kanter's offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses."

In 2014, the U.S. Court of Appeals for the 6th Circuit saw a similar problem with the blanket disqualification of people who were ever committed to psychiatric facilities. "The government's interest in keeping firearms out of the hands of the mentally ill is not sufficiently related to depriving the mentally healthy, who had a distant episode of commitment, of their constitutional rights," the appeals court ruled, noting that the government said it "currently has no reason to dispute that [the plaintiff] is a non-dangerous individual."

Cotton clearly has no such qualms. In his mind, anyone who illegally possesses a gun is ipso facto a public menace, even when there is no evidence to support that characterization. As far as Cotton is concerned, all such individuals are "violent felons" or might as well be.

In addition to cracking down on illegal gun possession, Cotton wants to increase the mandatory minimums for people who use guns "in furtherance of" a "crime of violence" or a "drug trafficking crime." Here, too, the defendants are not necessarily "violent felons," since using a gun includes merely possessing it for self-defense while selling drugs. In that scenario, where no one is injured or even threatened, Cotton would increase the mandatory minimum from five to seven years, which would be on top of the penalties for illegal gun possession and drug dealing.

Cotton's bill also would expand the criteria for the 15-year mandatory minimum that applies to defendants charged with illegal gun possession when they have three prior convictions. Currently, those convictions have to involve "a violent felony or a serious drug offense." Under Cotton's bill, three "serious felony convictions"—meaning crimes that carry maximum terms of 10 years or more—would be enough to trigger the mandatory minimum.

That change would further expand the penalty beyond the "violent felons" Cotton claims to be targeting. Someone who was convicted of two nonviolent drug felonies and was later caught with a gun twice, for example, would automatically go to prison for 15 years.

Republicans frequently complain that the gun laws Democrats support turn otherwise law-abiding people into felons and punish conduct that violates no one's rights, such as private gun sales or unregistered possession of certain firearms. Yet Cotton, who presents himself as a champion of the Second Amendment, is doing essentially the same thing by demanding the imprisonment of people who violate arbitrary restrictions on gun possession.